(p. 981) Index
(p. 981) Index
(1) For analysis of the principle of proportionality in European Union law, see: Gráinne de Búrca, ‘The Principle of Proportionality and its Application in EC Law’ (1993) 13 YEL 105; Nicholas Emiliou, The Principle of Proportionality in European Law: A Comparative Study (Kluwer 1996); George Gerapetritis, Proportionality in Administrative Law: Judicial Review in France, Greece, England and in the European Community (Sakkoulas 1997); Evelyn Ellis (ed), The Principle of Proportionality in the Laws of Europe (Hart 1999); Yutaka Arai-Takahashi, ‘“Scrupulous but Dynamic”: The Freedom of Expression and the Principle of Proportionality under European Community Law’ (2005) 24 YEL 27; Tor-Inge Harbo, ‘The Function of the Proportionality Principle in EU Law’ (2010) 16 ELJ 158.
(2) With the demise of the Soviet Union, Russia succeeded to the ICCPR, thereby becoming a party. In contrast, the three Baltic states, Belarus, and the Ukraine joined the same treaty by accession for the purpose of emphasizing their own identity separate from that of the Soviet Union. The ten Commonwealth of the Independent States (CIS) states followed suit. Another unique problem of state succession arose with the transfer of Hong Kong from the United Kingdom to China. The agreement of transfer required China to continue applying the ICCPR to Hong Kong, although China itself is not a party to the treaty. The succession of Macao to the ICCPR followed the same pattern on the basis of agreement between Portugal and China.
(2) The Human Rights Committee (International Covenant on Civil and Political Rights), Committee on Economic, Social and Cultural Rights (International Covenant on Economic, Social and Cultural Rights), Committee on the Elimination of Racial Discrimination (Convention on the Elimination of all Forms of Racial Discrimination), Committee on the Elimination of Discrimination against Women (Convention on the Elimination of Discrimination against Women), Committee against Torture (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment), Subcommittee on Prevention of Torture (Optional Protocol to the Convention against Torture), Committee on the Rights of the Child (Convention on The Rights of the Child), Committee on Migrant Workers (International Covenant on the Protection of the Rights of All Migrant Workers and Members of Their Families), Committee on the Rights of Persons with Disabilities (Convention on the Rights of Persons with Disabilities), Committee on Enforced Disappearance (International Convention for the Protection of All Persons from Enforced Disappearance).
(2) Judge Martens in Gul v Switzerland 165, as quoted in Alastair Mowbray, Human Rights Law in Perspective: The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Hart 2004) 2.
(2) Treaty of Peace between the Allied Powers and Germany (Treaty of Versailles).
(2) ILC, ‘Report of the Study Group of the International Law Commission: Fragmentation of International Law: Difficulties Arising from Diversification and Expansion of International Law’ (13 April 2006) UN Doc A/CN.4/L682, 65–101. See also Bruno Simma, ‘Self-Contained Regimes’ (1985) 16 NYIL 111; Erik Castrén, Annual Report: 2007 (U Helsinki 2007). Note, too, that Art 55 of the 2001 Articles on State Responsibility recognizes the phenomenon of self-contained regimes.
(2) ILC, ‘Text of the Draft Articles on Diplomatic Protection and Commentaries Thereto’ in ILC, ‘Report of the International Law Commission’ (8 August 2006) UN Doc A/61/10.
(3) United Nations Department of Economic and Social Affairs, ‘NGO Branch’ <http://esa.un.org/coordination/ngo/new/index.asp?page=table2007> accessed 13 August 2012 (noting that forty NGOs had consultative status before the UN Economic and Social Council by 1948 and 180 in 1968). See also eg United Nations Department of Economic and Social Affairs, ‘Civil Society Participation’ <http://esango.un.org/civilsociety/displayConsultativeStatusSearch.do> accessed 13 August 2012 (International League for Human Rights accredited in 1946; Women’s International League for Peace and Freedom accredited in 1948; Anti-Slavery International accredited in 1950; Amnesty International accredited in 1964). Until 1996, only international NGOs were allowed consultative status, but a resolution in that year allowed regional and national NGOs to apply as well. See ECOSOC ‘Consultative Relationship between the United Nations and Non-Governmental Organizations’ Res 1996/31 (25 July 1996).
(3) Marx based his claim, ‘from each according to his ability, to each according to his needs’, on John Locke’s argument that capitalists’ payment did not adequately reflect the value of workers’ labour. The association of the labour theory of value with Marxism may have diminished the respect given to economic claims of workers in contemporary human rights discourse. Tonia Novitz and Colin Fenwick, ‘The Adoption of Human Rights Discourse to Labour Relations: Translation of Theory into Practice’ in Colin Fenwick and Tonia Novitz (eds), Human Rights at Work: Perspectives on Law and Regulation (Hart 2010) 1, 10.
(3) As Koskenniemi aptly noted, ‘Terms such as “human rights law”, “trade law” or “environmental law” and so on are arbitrary labels of forms of professional specialization. There are no rules on how to qualify particular treaty regimes and most regimes could be qualified from a number of such perspectives. Human rights treaties, for example, are often used to further environmental objectives and trade regimes presuppose and are built upon the protection of human rights (in particular the right to property)’. ILC, ‘Fragmentation of International Law’ (n 2) 129–30. ‘The characterizations have less to do with the “nature” of the instrument that the interest from it which it is described’ ((n 2) 17).
(3) The United States Supreme Court subsequently held that application of the death penalty to juvenile offenders was unconstitutional, citing in part international consensus on the topic. Roper v Simmons.
(4) REDRESS, Torture Survivors’ Perceptions of Reparation: Preliminary Survey (Redress Trust 2001) 9, <http://www.redress.org/downloads/publications/TSPR.pdf> accessed 18 February 2013.
(4) See GATT, Art XXIV; Sarah Joseph, Blame It on the WTO: A Human Rights Critique (OUP 2011) 281.
(4) Developments in the law on diplomatic protection, as the ILC Draft Articles on Diplomatic Protection reflect, include the acknowledgment that states protect the rights of individuals, not primarily their own rights; the abandonment of the requirement of genuine nationality and the adoption of continuous nationality; the protection of refugees, stateless persons, and ships’ crews; certain exceptions to the local remedies rule; and recommendations regarding the decision whether and by what means to resort to diplomatic protection. See ILC, ‘Draft Articles’ (n 2) Arts 1, 3, 5, 8, 10, 15, 18, and 19, respectively.
(4) The 1836 People’s Charter of the London Working Men’s Association, which William Lovett led, exemplified the trend toward class-consciousness across borders. It called for universal suffrage and other democratic measures, reflecting an assumption that political reform and organization were necessary for workers to obtain economic and social progress. In 1843, the French unionist, Flora Tristan, presented a concrete plan for an international association of workers united to obtain political and economic power in L’Union Ouvrière. Lewis L Lorwin, The International Labor Movement: History, Policies, Outlook (Harper 1953) 3, 5.
(5) A survey of available literature at that time was made in the Redress study of 2001. REDRESS, Torture Survivors’ Perceptions (n 4); studies reviewed covered, inter alia, the ‘comfort women’ that the Japanese Army held as sex slaves in the Second World War, internees in Northern Ireland, the International Criminal Tribunal for the Former Yugoslavia, the truth and reconciliation processes in South Africa, Holocaust survivors, and survivors of political repression in Chile and Argentina.
(5) Poland (reborn after her partition in the eighteenth century among Prussia, Austria, and Russia) or Estonia, Latvia, and Lithuania.
(5) Examples of claims commissions instituted in response to armed hostilities are the France-Venezuela Mixed Claims Commission of 1902 and the US-Germany Mixed Claims Commission of 1933. Somewhere in between are claims commissions established in response to internal disturbances affecting foreign nationals, such as the US-Mexico General Claims Commission of 1926–27. However, during the negotiations on the British-Mexican Claims Commission it was initially proposed to limit the jurisdiction of the Commission to claims related to the revolution in Mexico and to create a second, and separate, claims commission for claims not related to the revolution, if such claims could not be settled diplomatically. This suggested that situations unrelated to armed conflict were also subject to international settlement. See British-Mexican Claims Commission (1930) V RIAA 3. Numerous other arbitral awards have been reported in the Reports of International Arbitral Awards (RIAA) for claims based on individual injury.
(5) Before the First World War, the labour movements in Great Britain and the United States (US) took a pragmatic and functional approach to international problems, focusing on issues like migration and mutual aid in strikes. Social reformist trade unions in many Western European countries espoused immediate improvements in labour conditions and faith in socialism. The French and various minorities of other national labour movements advocated radical methods of class struggle to abolish capitalism but, with the advent of the First World War and the Bolshevik Revolution in Russia, the French labour movement shifted toward the social reformist views. Lorwin (n 4) xii.
(6) Inter-American Institute of Human Rights (IIHR), Comprehensive Attention to Victims of Torture in Cases under Litigation: Psychological Contributions (IIHR 2009), a report of a four-year project by mental health professionals who offered support to victims during litigation before the Inter-American human rights system. They looked at how to ensure that litigation is a healing process for torture victims by reference to several countries in the Americas. Country-specific studies on victims’ perceptions have also been conducted, inter alia, in the Democratic Republic of the Congo, Uganda, Timor Leste, Nepal, South Africa, Burundi, and Cambodia—both before and after the establishment of justice mechanisms.
(6) Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
(6) See generally J Herman Burgers and Hans Danelius, The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Martinus Nijhoff 1988); Ahcene Boulesbaa, The UN Convention on Torture and the Prospects for Enforcement (Martinus Nijhoff 1999); Manfred Nowak and Elizabeth McArthur, The United Nations Convention against Torture: A Commentary (OUP 2008); Nigel S Rodley and Matt Pollard, The Treatment of Prisoners under International Law (3rd edn, OUP 2009).
(6) The Human Rights Committee (HRC) has paraphrased the ICCPR Art 4(2) list of non-derogable rights as follows: ‘article 6 (right to life), article 7 (prohibition of torture or cruel, inhuman or degrading punishment, or of medical or scientific experimentation without consent), article 8, paragraphs 1 and 2 (prohibition of slavery, slave-trade and servitude), article 11 (prohibition of imprisonment because of inability to fulfil a contractual obligation), article 15 (the principle of legality in the field of criminal law, ie the requirement of both criminal liability and punishment being limited to clear and precise provisions in the law that was in place and applicable at the time the act or omission took place, except in cases where a later law imposes a lighter penalty), article 16 (the recognition of everyone as a person before the law), and article 18 (freedom of thought, conscience and religion).’ HRC, ‘General Comment No 29: States of Emergency (Art 4)’ (31 August 2001) UN Doc CCPR/C/21/Rev.1/Add.11, para 7.
(6) See eg Richard Joyce, The Evolution of Morality (MIT Press 2006); Robin Kar, ‘The Deep Structure of Law and Morality’ (2006) 106 Tex L Rev 877; John Mikhail, ‘Universal Moral Grammar: Theory, Evidence and the Future’ (2007) 11 Trends in Cognitive Science 143; Marc D Hauser, Liane Young, and Fiery Cushman, ‘Reviving Rawls’s Linguistic Analogy: Operative Principles and the Causal Structure of Moral Actions’ in Walter Sinnott-Armstrong (ed), Moral Psychology: The Cognitive Science of Morality: Intuition and Diversity, vol 2 (MIT Press 2008); Walter Sinnott-Armstrong, Moral Psychology: The Evolution of Morality: Adaptations and Innateness, vol I (MIT Press 2008); John Mikhail, Elements of Moral Cognition: Rawls’s Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (CUP 2011); Robin Kar, ‘The Two Faces of Morality: How Evolutionary Theory Can Both Vindicate and Debunk Morality’ in James E Fleming and Sanford Levinson (eds), NOMOS: Evolution and Morality (NYU Press 2012); Michael Tomasello and Amrisha Vaish, ‘Origins of Human Cooperation and Morality’ (2013) 64 Annual Review of Psychology 231. In ways that are broadly consistent with the main claims of this chapter, John Mikhail has recently extended his work in moral psychology to the topic of human rights as well. See John Mikhail, ‘Moral Grammar and Human Rights: Some Reflections on Cognitive Science and Enlightenment Rationalism’ in Ryan Goodman, Derek Jinks, and Andrew K Woods (eds), Understanding Social Action: Promoting Human Rights (OUP 2012).
(6) As it was with the case with Iran in 2010.
(6) Eg Romania or the SHS-Kingdom (after 1929: Yugoslavia).
(7) In addition to the forty-seven members of the Council of Europe, Kyrgyzstan joined in 2004, Chile in 2005, the Republic of Korea in 2006, Morocco and Algeria in 2007, Israel in 2008, Peru and Brazil in 2009, Tunisia and Mexico in 2010, Kazakhstan in November 2011, and the United States in early 2013. The Council has accepted Belarus as an associate member, while Argentina, Canada, the Holy See, Japan, and Uruguay are observers. For a complete list, see ‘Documents by Opinion and Study’ (Venice Commission) <http://www.venice.coe.int/WebForms/members/countries.aspx> accessed 31 May 2013.
(7) See inter alia Marc-André Eissen, ‘The Principle of Proportionality in the Case-Law of the European Court of Human Rights’ in Ronald St J Macdonald, Franz Matscher, and Herbert Petzold (eds), The European System for the Protection of Human Rights (Martinus Nijhoff 1993) ch 7; Jeremy McBride, ‘Proportionality and the European Convention on Human Rights’ in Evelyn Ellis (ed), The Principle of Proportionality in the Laws of Europe (Hart 1999) 23; Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia 2002).
(8) In 2011, for example, Mexico adopted an amendment to Article I of its constitution to give constitutional standing to international human rights treaties.
(8) Edwin M Borchard, Diplomatic Protection of Citizens Abroad or the Law of International Claims (Banks Law Publishing Co 1915) 13.
(9) In Argentina, Slovakia, and Venezuela, special status is given to human rights treaties. The Argentine Constitution mentions a number of human rights treaties, giving them constitutional status; they cannot be repealed by the legislature. Similarly, Art 23 of the 1999 Venezuelan Constitution grants human right treaties a high level in the constitutional hierarchy, to the extent that those treaties contain provisions more favorable than domestic legislation. Austria and Italy require a parliamentary supermajority to give treaties the same status as constitutional provisions. Article 154(c) of Slovakia’s Constitution provides that human rights treaties adopted prior to I July 2001 have this status only if the rights are of greater scope than those provided in the constitution. For further examples, see Thomas Buergenthal, ‘Modem Constitutions and Human Rights Treaties’ (1997) 36 Colum J Transnat’l L 211. See the reports contained in Dinah Shelton (ed), International Law in Domestic Legal Systems (OUP 2011).
(10) Other states in this category include Bulgaria, France, Germany, Greece, Portugal, and Russia.
(10) See eg International Covenant on Economic, Social and Cultural Rights (ICESCR); International Covenant on Civil and Political Rights (ICCPR); Convention on the Rights of the Child; Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms; International Convention on the Elimination of All Forms of Racial Discrimination.
(10) See eg Thaddeus Metz, ‘Human Dignity, Capital Punishment, and an African Moral Theory: Toward a New Philosophy of Human Rights’ (2010) 9 JHR 81. See also the Indian Supreme Court’s very interesting discussion of India in M Nagraj v Union of India, philosophizing at length about the relationship between Indian conceptions of human dignity and the German understanding of dignity, and the extent to which German ideals thus inform their decision.
(11) Ernest Mahaim, ‘The Historical and Social Importance of International Labor Legislation’ in James T Shotwell (ed), The Origins of the International Labour Organization, vol I (Columbia UP 1934) 3 (from memorandum of Legrand, 1847).
(11) For instance, two studies that the Centre for the Study of Violence and Reconciliation (CSVR) published in 1998 and 2000 on the findings of the Truth and Reconciliation Commission in South Africa found that whereas at the time of the first study, people thought about reparation in terms of their immediate needs, the passage of time, combined with treatment, led to a change in victims’ attitudes. As a result, by the time of the second study, they were likely to see prosecutions as more important. Brandon Hamber and others, ‘Survivors’ Perceptions of the Truth and Reconciliation Commission and Suggestions for the Final Report’ (CSVR) <http://www.csvr.org.za/index.php/publications/publications-by-date.html?start=370> accessed 18 February 2013; CSVR, ‘Two Years after the TRC Final Report: A Khulumani View’ (July 2000) CSVR (both cited in Torture Survivors’ Perceptions (n 4) 45–46).
(12) Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. See generally Nowak and McArthur (n 6) 879–1192; Rachel Murray and others, The Optional Protocol to the UN Convention against Torture (OUP 2011).
(12) Poland (28 June 1919), Czechoslovakia (10 September 1919), Romania (9 December 1919), Yugoslavia (10 September 1919), and Lithuania about the Memel-region (8 May 1924) signed the treaties. The Turkish peace treaties of Sèvres and Lausanne also imposed some obligations on Greece vis-à-vis her Muslim minority.
(12) The OAS suspended Honduras following a coup d’état in 2009, readmitting the government in 2011. The African Union similarly suspended Mauritania in 2005 and 2009.
(12) Article 98 of the Japanese Constitution provides, without further elaboration in the text, that the Constitution is the supreme law of the land and that ‘The treaties concluded by Japan...shall be faithfully observed’.
(13) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, preamble.
(13) HRC, ‘General Comment No 29’ (n 6) para 11. As to the latter point, the Committee gives four examples of prohibited conduct that would not relate to any of the non-derogable provisions of the ICCPR, but which nevertheless would violate either peremptory norms or international humanitarian law: hostage-taking, collective punishment, arbitrary deprivation of liberty, and deviation from fundamental principles of a fair trial, including the presumption of innocence. It is to be noted that the Committee does not specify which, if any, of these prohibitions represent peremptory norms.
(13) There are some exceptions, which the ILC Draft Articles have included by way of progressive development; under Art 8, states are allowed to protect refugees and stateless persons under certain circumstances. While a human rights approach clearly inspired this provision, it is considered de lege ferenda and therefore outside the development of human rights law and diplomatic protection. See R (Al Rawi) v Foreign Secretary  EWHC 972 (Admin), para 63, where the Court held that Art 8 was de lege ferenda ‘not yet part of international law’. If anything, it is the influence of human rights law on diplomatic protection that explains this provision.
(13) Examples include the constitutions of the Czech Republic, the Republic of Hungary, Portugal, and Slovakia.
(14) Treaty between Austria and Czechoslovakia (7 June 1920), amended later with an additional protocol (23 August 1920); Treaty between Free City of Danzig and Poland (9 November 1920); Treaty between Bulgaria and Greece (27 November 1919) and its protocol (29 September 1924); Treaty between Czechoslovakia and Poland (25 April 1925); Treaty between Romania and Yugoslavia (10 March 1933).
(14) Like that of many other constitutions, the Netherlands’ Constitution is silent on customary international law. The Portuguese Constitution also does not clearly indicate hierarchy. Authors almost unanimously ascribe a superior value to general international law, but opinions are divided as to its hierarchical position in relation to the constitution.
(14) For a regional example regarding the denunciation of the American Convention on Human Rights, see the case of Venezuela. OAS, ‘IACHR Regrets Decision of Venezuela to Denoun